The Constitution and tensions of government

By Deseret News Jun 29, 2014, 8:16am MDT

The wording of the Constitution still matters, thankfully.

With its unanimous decision last week to nullify four appointments President Barack Obama made to the National Labor Relations Board without the consent of the Senate, the U.S. Supreme Court signaled there are limits to political gamesmanship.

Yes, Republicans in the Senate were acting with political strategy in mind late in 2011 when they decided to hold brief “pro forma” sessions at regular intervals during a time when they normally would recess for vacation. The idea was to block President Obama’s nominations to the NLRB, appointees that Senate Republicans found unacceptable.

The administration said this maneuver was a sham and appointed three people to the board anyway, invoking the president’s power to make recess appointments without Senate approval.

But the court last week held that, regardless of the Senate’s intent, the chamber decides when it is in session. Republicans may have been using the wording of the Constitution for a strategic advantage, but they did so under the rules. Over the holiday season in late 2011 and early 2012, “It (the Senate) said it was in session, and Senate rules make clear that the Senate retained the power to conduct business,” the court said.

For its part, the Constitution says, “The president shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.” Those words still have meaning. Obama’s appointments have been nullified. Americans should be thankful for this ruling, if for no other reason than that future presidents cannot abuse their recess appointment powers, regardless of political persuasion.

However, a narrow 5-4 majority of the court also overturned a sensible lower court ruling that would have further limited the president to making recess appointments only for vacancies that arise while the Senate is in recess. That ruling also held that “recess” refers only to the once yearly break between sessions.

Over the years, presidents have made recess appointments for vacancies that arose while the Senate was in session but that remained unfilled when it adjourned. The wording of the Constitution seems to specifically apply this power to “vacancies that may happen during the recess of the Senate.” But the court’s majority quoted Thomas Jefferson, who said in a letter that the clause is “certainly susceptible of (two) constructions.” It then relied on “Historical practice over the past 200 years,” to decide that presidents may make such appointments even for vacancies that did not arise suddenly during a recess.

Justice Antonin Scalia, in a concurring opinion, said this “transforms the recess-appointment power from a tool carefully designed to fill a narrow and specific need into a weapon to be wielded by future presidents and future Senates.”

But of course there are political weapons on both sides. If Republicans should take control of the Senate in November’s election, this ruling could come into play regarding future Obama appointments. However, the Senate has demonstrated it can find ways within the confines of the Constitution, and now upheld by the nation’s highest court, to keep itself in session and keep recess appointment at bay.

For average Americans, the issue is whether government can continue functioning in a somewhat efficient manner, disposing of its duties fairly and providing for the public’s welfare.

As the court’s majority said, “The Recess Appointments Clause reflects the tension between the president’s continuous need for ‘the assistance of subordinates,’ and the Senate’s early practice of meeting for a single brief session each year.” Times change, and the Senate now stays in session much longer. But tensions, of a political sort, remain. They are important, because ultimately those tensions reflect competing philosophies of good government and the will of the people.

The Constitution is remarkable for its ability to allow those tensions to fuel the engine of government while protecting the rights of minorities against the desires of the majority. We’re glad the Supreme Court used the words of the Constitution to sensibly resolve this matter.